BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
2
5
0
AB 250 (Miller)
As Amended May 7, 2009
Hearing date: June 16, 2009
Penal Code
MK:mc
CRIMINAL PROCEDURE: TRIALS: TIMING
HISTORY
Source: California District Attorneys Association
Prior Legislation: None
Support: Orange County District Attorney's Office; Attorney
General's Office; Judicial Council; Crime Victims
United of California; Los Angeles County District
Attorney's Office; Riverside County District Attorney;
California State Sheriff's Association; Chief Probation
Officers of California
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE LAW REQUIRE THAT THE WITHDRAWAL OF A GENERAL TIME WAIVER
BE DONE IN OPEN COURT, AND THAT A TRIAL BE SET AND ALL PARTIES BE
PROPERLY NOTIFED OF THE TRIAL DATE?
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PURPOSE
The purpose of this bill is to require that the withdrawal of a
general time waiver be done in open court, and that a trial date
be set and that all parties be properly notified of the trial
date.
Existing law states that both the People and a defendant have a
right to a speedy and public trial. (California Constitution,
Article I, Section 13.)
Existing law provides that in a criminal action the defendant is
entitled to a speedy and public trial. (Penal Code 686(1).)
Existing law provides that in a felony case, when a defendant is
not brought to trial within 60 days of the defendant's
arraignment on an indictment or information, or in the case the
cause is to be tried again following a mistrial, the court
shall, unless good cause to the contrary is shown, order that
the case be dismissed. (Penal Code 1382(a)(2).)
Existing law provides that if the defendant enters a general
time waiver to the 60 day trial requirement, and if the
defendant, after proper notice to all parties, later withdraws
his or her waiver in the superior court, the defendant shall be
brought to trial within 60 days of that withdrawal. (Penal Code
1382(a)(2)(A).)
Existing law provides that in a misdemeanor case, regardless of
when the complaint was filed, if the defendant is not brought to
trial within 30 days of arraignment if the defendant is in
custody, or within 45 days of arraignment if the defendant is
not in custody, the court shall dismiss the case. (Penal Code
1382(a)(3).)
Existing law provides that if the defendant enters a general
time waiver to the 30 day or 45 day trial requirement, and if
the defendant, after proper notice to all parties, later
withdraws his or her waiver, the defendant shall be brought to
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trial within 30 days of that withdrawal. (Penal Code
1382(a)(3)(A).)
This bill requires that a defendant must withdraw a general
waiver in open court.
This bill further provides that upon the withdrawal of a general
time waiver in open court, a trial date shall be set and all
parties shall be properly notified of the date.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
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requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Existing law requires that defendant be brought to trial
within 60 days of arraignment in a felony case, or
within 30 days of arraignment in a misdemeanor case, as
specified. Currently, a defendant may withdraw his or
her waiver of time (right to a speedy trial) or consent
to an extension of time, as specified.
Once a defendant withdraws his or her time waiver, after
all parties have been properly notified, the case is
required to be brought to trial within 60 days (felony
cases) or 30 days (misdemeanor cases) of arraignment.
If a defendant does not waive their right to a "speedy
trial" or consent to an extension of time, as specified,
and the case is not brought to trial within 60 days
(felony cases) or 30 days (misdemeanor cases) of
arraignment, the case must also be dismissed. The
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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problem is statutes fail to specify that a withdrawal
must be made in open court nor do they specify a minimum
period of notice before the withdrawal becomes
effective.
At the pretrial hearing of Arias v. Superior Court of
Orange County, the petitioner moved for dismissal,
contending that it was the last day to bring the
defendant to trial, because 30 days had lapsed since the
revocation of the general time waiver. The motion was
granted. In spite of this, the court set a trial
date-so the petitioner sought a writ of mandate from the
Appellate Court. The Court held that the defendant
successfully withdrew his waiver of the statutory speedy
trial right. The problem is statute authorizing
withdrawal does not specify that withdrawal must be made
in open court, or require any specific minimum period of
notice prior to the effective date of the withdrawal.
In its opinion, the Court recognized that its conclusion
could have substantial impact on the operation of trial
courts.
Because of the State's financial difficulties, it is
rare that one deputy handles a case from charge to
sentencing. As a result, deputies are handling multiple
case files at once and often only see the file for the
first time a few days before the scheduled proceeding.
If a general time waiver is filed only in writing and
not in open court, the notice will merely be placed in
the file, only to be seen a few days before the
scheduled proceeding. If a general time waiver is filed
only in writing and not in open court, the notice will
merely be placed in the file, only to be seen a few days
or hours before the 30-day or 60-day period lapses.
Deputy district attorneys must be as vigilant as
possible, but requiring the time waiver to be withdrawn
in open court is within the best interest of judicial
efficiency. Further, most people would agree that a
person who has committed a crime should not escape
prosecution simply because his or her counsel is not
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required to withdraw the waiver in open court.
2. General Time Waiver
Generally, the Federal and State Constitutions and the
California Penal Code provide for the right to a speedy trial.
Statutorily the speedy trial time frame has been determined to
be 60 days for a felony trial and either 30 or 45 days for a
misdemeanor trial. Failure to bring a case to trial by the set
date will result in dismissal. However:
A felony action may not be dismissed for failure to
commence trial within 60 days (see supra, 286) if the
defendant has entered a general waiver of this
requirement. The general waiver entitles the superior
court "to set or continue a trial date without the
sanction of dismissal should the case fail to proceed on
the date set for trial." (P.C. 1382(a)(2)(A).) ?
If the defendant, after proper notice to all parties,
later withdraws the waiver in the superior court, the
defendant must be brought to trial within 60 days of the
date of that withdrawal. (P.C. 1382(a)(2)(A).) ( 5
Witkin Cal. Crim. Law Crim. Trial 317 )
If the case is a misdemeanor, the case will not be dismissed if:
[t]he defendant enters a general waiver of the 30-day or
45-day requirement. The court may then set or continue
the trial date without the sanction of dismissal if the
case fails to proceed on the date set for trial. If the
defendant, after proper notice to all parties, withdraws
the waiver, the defendant must be brought to trial
within 30 days of the date of the withdrawal. (P.C.
1382(a)(3)(A); see People v. Murphy (1998) 61 C.A.4th
Supp. 5, 8, 74 C.R.2d 116 [time waiver on entry into
diversion is general waiver under P.C. 1382(a)(3)(A)].)
( 5 Witkin Cal. Crim. Law Crim. Trial 318 )
The Penal Code and case law states:
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A waiver results where the defendant expressly consents
to the setting of a trial date beyond the prescribed
statutory period. (P.C. 1382(a)(2)(B), supra, 317;
P.C. 1382(a)(3)(B), supra, 318.). The defendant may
also expressly enter a general time waiver. (P.C.
1382(a)(2)(A), supra, 317; P.C. 1382(a)(3)(A), supra,
318.) (See People v. Tahtinen (1958) 50 C.2d 127, 131,
323 P.2d 442 [consent to delay requested by public
defender]; People v. Frye (1998) 18 C.4th 894, 937, 77
C.R.2d 25, 959 P.2d 183 [where defendant repeatedly
waived right to speedy trial while court sought effective
assistance for defendant through appointed counsel and
while appointed
counsel prepared for trial, trial court did not have to
further consider theoretical tension between right to
counsel and right to speedy trial; being forced to make
hard choices is not unconstitutional].) ( 5 Witkin Cal.
Crim. Law Crim Trial 320 )
3. Withdrawal of Waiver
Existing law provides that a withdrawal of a general waiver must
include notice to all parties. While such a withdrawal may
occur in open court, the court in Arias v. Superior Court made
it clear that it is not required that it occur in open court:
After consideration of the People's response and oral
argument by both parties, we conclude the writ should be
granted in this case for the reasons discussed below.
HN1Penal Code section 1382, subdivision (a)(3)(A)
provides that a general waiver of the 30-day or 45-day
trial requirement entitles the court to set or continue
a trial date without the sanction of dismissal should
the case fail to proceed on the date set for trial. The
statute further provides that "[i]f the defendant, after
proper notice to all parties, later withdraws his or her
waiver, the defendant shall be brought to trial within
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30 days of the date of that withdrawal." (Ibid.) The
statute does not specify that withdrawal must be made in
open court, or specify any length of notice that is
required before the withdrawal becomes effective.
[***3] CA(2)(2) In this case the record indicates
petitioner served the notice of withdrawal on the People
prior to filing of the notice with the court, in that
the district attorney's file stamp appears on the
file-stamped copy of the withdrawal. As such, the
withdrawal was made "after notice" on the People, albeit
very short notice. Had the Legislature intended to
limit the method of giving of notice of withdrawal, or
to require a specific minimum period of notice prior to
the effective date of the withdrawal, it could have
included such specific requirements in the language of
Penal Code section 1382. Lacking such language, we must
conclude that petitioner in this case complied with the
statutory provision and successfully withdrew his
general waiver.
CA(3)(3) We recognize that our conclusion could have a
substantial impact on operation of the trial courts. It
is not inconceivable that service of notice of [*4]
withdrawal in the manner employed in this case could
place a significant burden on the People and the trial
courts to schedule and commence trials within the 30-day
period. Nonetheless, HN2a criminal defendant's
constitutional right to a speedy trial, codified in
Penal Code section 1382, cannot be infringed [***4] for
the convenience of the court, the People, or their
witnesses. It is incumbent on the trial courts and the
People to provide a defendant with a speedy trial when
one is demanded. We leave to those entities creation of
the means by which to do so. ( Arias v. Superior Court ,
167 Cal. App. 4th Supp. 1, 3-4 (Cal. Super. Ct. 2008).)
This bill provides that a withdrawal of a general waiver must
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happen in open court.
SHOULD THE LAW REQUIRE THAT WITHDRAWAL OF A GENERAL WAIVER OF
TIME OCCUR IN OPEN COURT?
4. Arguments in Support
The California District Attorneys Association argues that this
bill is necessary because:
Prosecution offices are facing increased workloads due
to the filing of more cases and reductions in the number
of deputy district attorneys because of fiscal
difficulties. As a result, deputies are handling large
numbers of case files at any given time, and they often
see the file for the first time only a few days before
the next scheduled proceeding. If a general time waiver
is filed only in writing and not in open court, the
distinct probability exists that it will be placed in
the file, only to be seen a few days or hours before the
30- or 60-day period lapses. While deputy district
attorneys must be as vigilant as possible, requiring the
time waiver to be withdrawn in open court is within the
best interest of judicial efficiency.
Judicial Council supports this bill stating:
The council supports AB 250 because it will improve
court efficiency and ensure all parties have actual
notice of a change in the status of a criminal case.
When parties are unaware of a change of this
significance, court efficiency suffers. For example, if
a prosecutor becomes aware of the withdrawal of the time
waiver late in the process, he or she is likely to seek
dismissal and then re-file the case in order to avoid
violation of the defendant's speedy trial rights. This
results in duplicative and avoidable arraignments and
preliminary hearings.
In addition requiring withdrawal of the time waiver in
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open court would also eliminate the ability of a party
to manipulate the system. For example, a party may set
several cases for hearing on one date and then withdraw
the time waivers. The court then must either find
available courtrooms, judges, and juries, or dismiss the
case.
By requiring personal appearances to withdraw the
waiver, the court can better manage its calendar. This
will reduce unnecessary and duplicative hearings and
potentially inappropriate dismissals.
WILL REQUIRING THE WAIVER IN OPEN COURT IMPROVE COURT
EFFICIENCY?
5. Arguments in Opposition
The California Public Defenders Association opposes this bill
stating:
AB 250 is unnecessary and wasteful. That is because, as
pointed out, a general waiver already cannot be
withdrawn without notice to all parties. Since the
parties already receive notice, it is unneeded and
wasteful to set yet another court date, requiring
preparation and costs to the court and prosecutor.
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On rare occasions, however, as noted, the court will
accept a general waiver under Sec. 1382, subd.
(a)(2)(A), but not set a trial date. In that event, of
course, existing law does not require a court to find
good cause to set an earlier trial date because no trial
date has been set anyway.
No silent withdrawal of the general waiver is allowed:
notice is required. The second sentence of the "general
waiver" provision expressly states: "[i]f the
defendant, after proper notice to all parties, later
withdraws his or her waiver in the superior court, the
defendant shall be brought to trial within 60 days of
that withdrawal." So before a time waiver is effective,
all parties and the court must know.
There are no statutory, or rule, guidelines for when the
court should accept a general waiver without setting a
trial date. Experience, however, shows that this is
only done in unusual cases where a long continuance is
appropriate before a trial date is set. Examples would
be when the time needed to prepare for trial is
uncertain, or where a large amount of restitution is
being made by payments, with an eye toward a negotiated
plea agreement.
If the defendant withdraws a general waiver where no
trial date was set, and both the prosecution and the
court-despite each having received notice-fail to set a
trial date, then the 60-day limit might be exceeded and
the case might have to be dismissed. Of course under
Penal Code section 1387, most felony cases can be
refilled one time.
The answer to both the prosecutor and the court failing
to set a trial date despite proper notice, however, is
not more legislation. The answer is for the prosecutor
and the court to make sure that when they do receive the
required notice of withdrawal of a general waiver, that
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they do set a trial date. Unusual cases like the ones
above require individual handling by the court, not
one-size-fits all blanket legislation resolutions.
This rare situation arose in a misdemeanor case, where
the time limit is half the 60-day felony time limit,
namely for misdemeanors, being only 30 days. In Arias
v. Superior Court of Orange County (2008) 167 Cal. App.
4th Supp. 1, the defendant provided notice of withdrawal
of the misdemeanor general waiver, but he prosecutor and
court took no action to bring the defendant to trial.
The court of appeal dismissed.
But neither the majority nor the concurrence suggested
that this rare situation is a problem that calls for a
legislative remedy.
The concurrence in Arias, supra, 167 Cal. App. 4th at
265-266, suggests six possible methods by which the
court and the prosecutor can insure that they do not
fail to set a trial date. None of those six methods
involved legislative actions.
The Arias court was wise in not suggesting any
legislative action. Legislative action is not
appropriate for those rare situations. On the contrary,
rare situations such as Arias, are as noted, much more
appropriate for the court to address on an individual
bases. Individual action by the court will avoid the
delay and waste of money inherent in AB 250.
IS REQUIRING THE WAIVER IN OPEN COURT AN UNNECESSARY BURDEN FOR
THE FEW CASES WHERE THERE IS A PROBLEM?
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